Whittaker v Child Support Registrar

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FEDERAL COURT OF AUSTRALIA

Whittaker v Child Support Registrar [2010] FCA 43

Citation: Whittaker v Child Support Registrar [2010] FCA 43
Parties: MARK ALAN WHITTAKER and ROTARY KILN SERVICES (AUSTRALASIA) PTY LTD (ABN 51 128 856 431) v CHILD SUPPORT REGISTRAR and COMMONWEALTH OF AUSTRALIA
File number(s): NSD 204 of 2008
Judge: LINDGREN J
Date of judgment: 5 February 2010
Catchwords:

ADMINISTRATIVE LAW – departure prohibition order made under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) by Child Support Registrar – whether order valid – whether Registrar obliged to afford procedural fairness by giving an opportunity to be heard where Registrar had received a “tip off” from an anonymous telephone caller that the person was about to leave Australia – whether failure by Registrar to notify person that order had been made, as Registrar was required to do by s 72G of Act, was a failure to accord procedural fairness that rendered order invalid – whether Registrar failed to give such notice. Held: In each case, No.

CONSTITUTIONAL LAW – whether Pt VA of Child Support (Registration and Collection) Act 1988 (Cth) invalid as conferring the judicial power of the Commonwealth on Child Support Registrar – Child Support Registrar was empowered to make departure prohibition order prohibiting a person from departing from Australia for a foreign country if, inter alia, the person had a child support liability and had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – consideration of factors indicative of “judicial power”. Held: Pt VA does not confer judicial power on Child Support Registrar.

EVIDENCE – s 32 of Evidence Act 1995 (Cth) – deponents of affidavits refreshing their memories from contemporaneous notes for the purposes of making their affidavits, and attaching a copy of the notes to the affidavits – whether affidavits rendered inadmissible by s 32 because the court had not given leave for the witness to use the notes to try to revive his or her memory – whether s 32 applied to affidavits made out of court and in contemplation of the hearing. Held: No - s 32 applies only to evidence given in court.

TORT – False Imprisonment – person intending to catch international flight detained in departure hall at airport because of departure prohibition order made in respect of him by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) – intending passenger could have abandoned attempt to depart and retreated out of airport’s departure hall – whether avenue of egress reasonable – statutory defence available to officials who had prevented intending passenger from catching international flight because departure prohibition order made by Child Support Registrar was in force in respect of him – s 72U of Act permitted authorised officers in certain circumstances to prevent person’s departure from Australia. Held: “imprisonment” not established because reasonable egress available and, in any event, statutory defence established.

TORT – interference with…

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Details
Case
[2010] FCA 43
Decision Date

CaseChat Overview and Summary

Whittaker v Child Support Registrar involved a dispute between Mr. Whittaker and the Child Support Registrar concerning payments made under section 76. Mr. Whittaker argued that he was entitled to specific amounts received by the Registrar in relation to his maintenance liability. The case was heard by the Federal Court of Australia, which needed to decide whether the affidavits presented by Mr. Whittaker, as well as those of the respondents, were admissible under the Evidence Act 1995 (Cth). The court examined the provisions of the Evidence Act, specifically sections 32 and 34, which deal with the admissibility of documents used to revive a witness's memory. Section 32 prohibits the use of documents in court to revive memory without leave from the court, while section 34 allows for the use of documents out of court for the same purpose, with the condition that they be produced to the other party. The court concluded that the affidavits were admissible, subject to their weight, as the documents from which the deponents had refreshed their memories had been made available to the other party. This satisfied the requirements of section 34 of the Evidence Act.

The Federal Court of Australia found that the affidavits were admissible, noting that the documents from which the deponents had refreshed their memories were made available to the other party, thus satisfying the requirements of section 34 of the Evidence Act. The court dismissed the proceeding with costs, finding that the evidence presented by Mr. Whittaker was reliable and that the objection to the affidavits was unfounded. This decision underscores the importance of ensuring that documents used to refresh memory are disclosed to the opposing party, aligning with the principles of fairness and transparency in legal proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Section 76 creates an entitlement in the payee of a registered maintenance liability to be paid, relevantly, amounts received by the Registrar in relation to the liability.THE FACTS IN OUTLINE Mr Whittaker commenced this proceeding on Monday 18 February 2008. That was the Monday following the incidents at the airport on Friday 15 and Saturday 16 February 2008. The following affidavits made by Mr Whittaker, or parts of them, were read:18 June 2009 (affidavit of 84 paragraphs and exhibits MAW – 01 to MAW – 25)30 July 2009 (affidavit in reply of 21 paragraphs)4 August 2009 (affidavit in reply of 101 paragraphs)8 September 2009 (affidavit in reply of 58 paragraphs)14 September 2009 (affidavit of 16 paragraphs). The affidavits read on behalf of the respondents were also numerous. It is convenient to divide the deponents of them into two broad categories and to subdivide the second category. The first category consists of officers of the CSA. The second category comprises ACS and AFP officers who had a role to play in the incidents at the airport. I refer to Senior Constables Jarvis, Mangkuwerdojo and Khier as “AFP officers.” They were members of the NSW Police Force who were seconded to the AFP at the relevant time. The deponents can be summarised as follows:CSA officersKevin Richard Cahill;David James BadkeJudith Jackson Trent WearneJames Cameron WinesThe two incidents at the airport(1) Incident on Friday 15 February 2008ACSJodie Ellis, who was the passenger processor (clearance officer – see below) on the outbound primary line of consoles or workstations who dealt with Mr Whittaker.Tomás Maolra de Bhaldraithe, who was the supervisor on the outbound primary line.AFPSenior Constable Nigel Stephen Allan Jarvis Senior Constable Komran MangkuwerdojoSenior Constable Mohamad Khier(2) Incident on Saturday 16 February 2008ACSSamantha Blair, who was the passenger processor (clearance officer – see below) on the outbound primary line of consoles or workstations who dealt with Mr Whittaker.Dean Francis Le Miere, who was on duty as Control Room operator in the Customs Control room on a lower level at the airport.AFPFederal Agent Stuart Charles LokheeFederal Agent Lori-Anne MackayMegan Patricia Pitt also made an affidavit that was read by the respondents. Ms Pitt was the director of the Sydney office of the Australian Government Solicitor (AGS). There is an area at the airport that has been variously called in the evidence the “departure hall” or “outbound immigration area” or “Passport Control”. Section 234AA(1) of the Customs Act provides, relevantly, that where a place is to be used by officers (defined to mean an officer of Customs) for questioning passengers embarking on an aircraft, for the purposes of the Customs Act or of any other law of the Commonwealth, a Collector or a person authorised by a Collector may cause signs to be displayed at or near the place that identify the place and state that entry into it by unauthorised persons is prohibited by the Customs Act. Such a place is referred to in the Customs Act as a “restricted area”.

Evidence

Evidence Before The Court

Section 52 of the Evidence Act, which is the first section in Pt 2.3, together with its heading, is as follows:Adducing of other evidence not affectedThis Act (other than this Part) does not affect the operation of any Australian law or rule of practice so far as it permits evidence to be adduced in a way other than by witnesses giving evidence or documents being tendered in evidence. Chapter 2 of the Evidence Act is headed “Adducing evidence” and Pt 2.1 “Witnesses” and Pt 2.2 “Documents”. Neither the making nor the reading of an affidavit in court is a form of the adducing of evidence that is dealt with in these Parts. The reading of an affidavit in court is not, for example, the adducing of evidence of the contents of a document in question for the purposes of ss 47 and 48 of the Evidence Act. The Evidence Act does not apply to the reading of an affidavit in court, either because that Act is not a code or because s 52 expressly allows for the possibility of the adducing of evidence by the reading of affidavits – a process which is not “witnesses giving evidence or documents being tendered in evidence”: see Aneve Pty Limited v Bank of Western Australia Limited [2005] NSWCA 441 (Aneve) at [70] per Hodgson JA with whom Santow and Bryson JJA agreed. In the present proceeding directions were made for the filing and service of affidavits of the evidence to be given at the trial. Implicitly, if not expressly, this was a direction or allowance for proof by affidavit at the trial as permitted by s 47(3) of the Federal Court of Australia Act 1976 (Cth). The direction or allowance was not subject to any condition and therefore contemplated the preparation and reading of affidavits in accordance with the usual practice. I respectfully agree with the statement made by Hodgson CJ in Eq in Lindsay-Owen v Lake [2000] NSWSC 1046 (at [3]):I would understand it to be the normal practice for affidavits and witness statements to be prepared in a process in which the witness is referred to and prompted by all available documents. I do not understand there to be any rule of law or professional ethics to the contrary. As I have said, s.32 does not appear to deal in any way with that process, because it only applies to what can happen in the course of a witness actually giving evidence. In Aneve at [71] Hodgson JA remarked that the Evidence Act, like the common law, generally requires oral evidence in chief to be given in response to non-leading questions. In the course of case management, where it becomes clear that there will be conflicting accounts of a conversation or other event, the Judge may think it desirable to direct that the evidence of the witnesses on that matter be given orally rather than by affidavit: see Federal Civil Litigation Precedents (LexisNexis Butterworths as at September 2009) at [38,010]; and Aneve at [71]. In the present case, the affidavits had been made and the deponents’ memories already refreshed out of court before the objection was taken. The documents from which memory had been refreshed had been made available to the other party, copies having been annexed to the affidavits, and so the purpose of s 34 of the Evidence Act had been satisfied.

Decision

Reasons for decision

I accept paras 12 and 13 of Mr Wearne’s affidavit as truthful and reliable evidence. His evidence in those paragraphs and in cross-examination is that there was and is an original DPO in the form of Annexure D to his affidavit which Ms Scott personally signed. I find that there was.CONCLUSION For the above reasons the proceeding will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

In the alternative, the submission quoted may be seen as a non-justiciable attack upon an aspect of the policy underlying Part VA. CONSIDERATION OF TWO FURTHER MATTERSObjection to affidavit evidence – s 32 of the Evidence Act 1995 (Cth) On the hearing, counsel for the applicants objected to the reading of certain affidavits on the ground that in making them, the deponents had used documents to revive their memory without the leave of the Court, contrary, so it was said, to s 32 of the Evidence Act 1995 (Cth) (Evidence Act). I ruled that the material was admissible subject, of course, to the question of the weight to be accorded to it, and said that I would publish reasons for that ruling. To that end, I invited counsel to make written submissions refining and elaborating on the oral submissions that they made at the time. They did so. The affidavits in question were those of:1. Nigel Jarvis made on 20 July 20092. Mohamad Khier made on 22 July 20093. Komran Mangkuwerdojo made on 14 July 20094. Stuart Lokhee made on 16 July 20095. Lori-Anne Mackay made on 17 July 20096. Megan Pitt made on 15 July Each affidavit followed a generally similar form. The deponent stated that in preparing the affidavit he or she had refreshed his or her memory from a document, a copy of which was attached to the affidavit (Federal Agent Mackay stated that a copy of the notes to which she had referred was annexed to the affidavit of Federal Agent Lokhee). For example, the affidavit of Federal Agent Lokhee stated:2.Prior to the preparation of this affidavit, in order to refresh my memory of relevant events, I have consulted the notes made in the Police Real-time Online Management Information System (PROMIS) on 16 February 2008 by the AFP Operations Coordination Centre (AOCC) and Federal Agent Lori Mackay (FA Mackay). A copy of these notes are [sic] annexed hereto and marked with the letter “A” ...3.I have also consulted the notes I made in my notebook. A copy of these notes is annexed hereto and marked with the letter “B” ... In the case of each affidavit, the deponent did not attempt to disclose the extent of his or her recollection of the events deposed to, unaided by the documents. In each case the objection was to all of the material in the affidavit that was the subject matter of the document, and that related to the events of 15 or 16 February as relevant to the witness. The objections were founded on s 32 of the Evidence Act, which, with s 34 of that Act, provides as follows:32 Attempts to revive memory in court(1)A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.(2)Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account:(a)whether the witness will be able to recall the fact or opinion adequately without using the document; and(b)whether so much of the document as the witness proposes to use is, or is a copy of, a document that:(i)was written or made by the witness when the events recorded in it were fresh in his or her memory; or(ii) was, at such a time, found by the witness to be accurate.(3)If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.(4)The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party. [My emphasis]34Attempts to revive memory out of court(1)The court may, on the request of a party, give such directions as are appropriate to ensure that specified documents and things used by a witness otherwise than while giving evidence to try to revive his or her memory are produced to the party for the purposes of the proceeding.(2)The court may refuse to admit the evidence given by the witness so far as it concerns a fact as to which the witness so tried to revive his or her memory if, without reasonable excuse, the directions have not been complied with.[My emphasis]Counsel for the applicants relied on the outright prohibition expressed in s 32, absent the leave of the Court.